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Archive for April, 2018

From time to time, we are all probably struck a little ‘off balance’ by current events – not just because they represent a greater degree of chaos than seen before– and not just because they don’t allow for a reference point with norms that we have come to take for granted – but because, in many cases, they shouldn’t be happening at all. Though I enjoy and champion traditions of various kinds, usually quaint and harmless ones – I’m all for fresh perspectives and a healthy turn over of ideas. In fact, I’m certain, as you now reading are also certain – that there is no progress without rigorous intellectual review, and that there can be no review at all, if traditions stand in the way of questions, like some unassailable taboo. At what point are traditions simply our comfort zones and what point must we concede that to keep them – without review – might damage us irreparably. I’m reminded of the words of Gustav Mahler – “Tradition ist Schlamperei” – or “Tradition is laziness (or) ‘slovenliness’ I’ve recently thought on a number of things that are not norms, but perhaps should be. They fly in the face of tradition, but given the tenor of world leadership today, we might make use of almost any alternative.

It may seem as if I’m odds with my own hypothesis. It seems that certain persons in a privileged position of power relish pulling down traditions, relish the reputation of unpredictability and the wave of chaos that ensues. Here’s the problem. The unpredictability is completely unintentional. It is a byproduct of being completely lost, making it up as one goes along and worse still, having a completely reactionary position on everything. Anthropologists will tell you that reaction is a base animal instinct, and if it’s the only tool you have, it’s because there is no mind at work, no preparation and no cogent thought process or strategy of one’s own. For commentators who wish to continue to give this particular ‘forest fire’ its oxygen, who continue to refer to this unpredictability as some sort of ‘trump card’ bargaining chip in world diplomacy – are simply trying to explain away the embarrassment.

So, here are some measures that would ensure that we don’t make the same mistakes again.

It has long been a tradition that a President of the United States, appoint his Secretary of State and that – the Senate confirmation notwithstanding -the office is in the gift of the President. Therefore, no matter whom, the incumbent ‘serves at the pleasure of the president’. Given the unique and preeminent position of the United States, a strong and respected diplomatic mission to the rest of the world is not only vital, it is the only thing that ‘puts America first’. To miss this point is remedial in the extreme. Being first is a position that is only possible as it is relative to all the other numbers that follow. Being isolated within your own borders, and lashing out like some reactionary caged animal when confronted with foreign diplomacy is not being first. It’s being alone. European leaders, the current batch effectively discounted by POTUS in the months following the European trip last year, know the perils of isolationism. So much so, that despite the public and rather deftly played ‘bromance’ French President Emmanuel Macron thought it necessary to school the joint session of Congress on precisely this matter. He also managed to bring up several other common sense issues left behind by this administration, including the importance of both the Iran Nuclear deal and the Paris Climate Accord. Our power lies in leading the world, not withdrawing from it.

In a historical perspective, in many cases, we took over the reins of power by default, from the declining British empire, and inserted ourselves into the old framework of foreign affairs – thereby inheriting many of the unresolved, sometimes unforgivable colonial missteps which Britain has since sought to forget. The Second War had been won, and we were able to bring economic progress and prosperity to almost every country with which we engaged, giving us a position of extraordinary respect and a sense of world collegiality with the United States leading a United Nations.

President Eisenhower and President Ayub Khan – Pakistan’s first -and some say finest- President. –

Who today could imagine the President of the United States, slowly making his way through the streets of Karachi, in an open horse drawn Landau with little or no secret service protection–genuinely cheered by the local people. We wouldn’t believe it, but for this marvelous picture.

How did we come as far as we have? Step by step, I imagine. Successive Secretaries of State and the policies of their administrations, from Henry Kissinger on, turned the tide toward a US that was powerful but not wise, rich but not benevolent, and increasingly politically inept in understanding the regional pressure points which it had inherited, or continued to unwittingly create. Entering a proxy war between the United States and the Soviet Union, on every territory but their own, didn’t provide reasonable incentive to find out the details or carefully discharge our duty, for the future of the nations that we occupied and used as toys. Modern Afghanistan, Syria, following on from modern Iraq and Lebanon are prime examples of a geopolitical proxy war which has nothing to do with the host country, much less its well-being. That has been our tradition, whether we like it or not, routinely followed, without review or explanation for 40 years.

This might seem odd, but in my view, to be really qualified to head the State Department, the candidate must have served in the United States Military, not as a deskbound general, but earlier in their career as a Captain or a Major, and have seen the horrors of combat. They must also be part of that unique ‘band of brothers’ (and sisters), that swears, once it has witnessed the ravages of war, that none of them would commit men and women into conflict, unless every single possible alternative, diplomatically, economically, regionally and tangentially had been exhausted. We must have diplomats who know that their role must be that of a peacemaker because they have seen and felt the alternative. The senior diplomat of the United States, who leads a vast network of information and soft power, and defines the presence of the United States in every country, sometimes in spite of the administration that he/she might serve, must – first and foremost- be a peacemaker.

Is it a fool proof way of selecting a Secretary of State? No, perhaps not. Mike Pompeo, Army Captain, Juris Doctor from Harvard Law and a short stint at the CIA seems preeminently suited. A strong candidate by any stretch. But then there is his less than evolved view of the LGBTQ community, not just by association with organizations who oppress and discriminate, but from his own, well documented words and thoughts. If he is to champion the rights of the downtrodden all over the world, especially the disenfranchised, he may need to look past his personal views. Like a judge, he must follow a greater cause than his own personal beliefs. With the rise of anti gay sentiment in African countries, in the Middle East, in the Philippines and also in modern Russia, (basically any despotic, unevolved country – governed by people who are in it for personal gain – that doesn’t espouse democratic ideals) it would be good for the top diplomat on the side of world freedom – to actually side with freedom. Oops!

State Department, Washington, D.C.

What about some common sense rules in selecting a qualified President?

Here’s a tradition that is enshrined in our Constitution, and whilst I’m loath to criticize the protocols of our great document, we have a deficiency in our election system. No, it’s not the electoral college. That’s a good thing, for a number of reasons that are not the subject of this blog. We have a Republican form of Government, a requirement of the Constitution.

The United States shall guarantee to every State in this Union a Republican Form of Government,…

Article 4, Section 4, Clause 1.

We send representatives to the nation’s capital to govern ‘re-public’ ‘for the public. Not everything can or should be decided by a democratic vote of all the people. The mob is almost always foolish, unprepared and ill-equipped to understand what is in their best interests. The idea was that one’s elected officials would have some qualifications and some ethical core value. Though not always achievable it is certainly the intention. We are now in a place where inept politicians surround an extraordinary figure who perhaps the framers did not expect. They might have assumed that the electorate would be informed, as they were when they wrote the Constitution. Whilst there are some commentators who say that we deserve the leaders we vote into office, there is something un ‘Republican’ – and therefore unconstitutional about that. Theoretically, our leaders must be sent into office, to govern on behalf of and in the best interest of the people. The whole premise of Republicanism assumes competency, fairness and good judgement. The uninformed and uncaring mob has elected someone to lead the free world, – a whole world that remains beyond their comprehension. We should no longer proudly state that ‘anyone can become President of the United States.’ Anyone just did. My fix. The President must have served as a senior official at the State Department– Under Secretary rank – Ambassador -or higher, after having done the military service that I put forward earlier as a prerequisite for the position.

It would be possible for Governors, Senators and Congressmen, to plan their careers to comply with this rule. Imagine, choosing from a field of perhaps three or four, really qualified candidates. No more clown car of 17 candidates, all up for the presidency, simply because they managed to fill out the paperwork. Take a page from Papal Conclave. Cardinals who have a good chance of being elected Pope, if they have spent a lifetime in a curial position in Rome, sometimes get posted to a Metropolitan see, so that they might have pastoral experience before taking the top job. Conversely, a Metropolitan Archbishop, whilst an able pastor and diocesan administrator, would do well to spend some time in Rome understanding the Curia – its real mission as well as the ‘palace intrigue’. They say that the results of Conclave are steered by the Holy Spirit. There is no reason not to give the Holy Spirit a head start with the right material. It is of vital importance that the person occupying the top job understands it.

Cardinals in Conclave. The taking of the oath, swearing loyalty to the prescribed rules of Conclave as amended by Pope John Paul II’s Universi Dominici Gregis.

Any individual failure to uphold the rules of Conclave results in automatic excommunication. Even here, at the pinnacle of the Roman Church there are grave consequences for error, and those consequences are not debatable, they are prescribed. The punishment is not ferendae sententiae – a sentence yet to be carried out – but latae sententiae =- a sentence already passed and in effect on the individual at the moment of the error. All great systems have remedies for error. All great systems acknowledge human frailty and prescribe a course of adjustment.

I think my readers know me as a champion of the United States Constitution. I don’t have much regard for ignoring or minimizing its directives, especially when they are purpose built. It is primarily with this in mind that I broach the topic contained in Article II, Section 4. We have a very precise and accurate protocol for recalling persons whom a majority may consider incompetent, dangerous or both. We use the same protocols for punitively recalling ministers of state, governors and judges. The procedure shouldn’t draw gasps of anxiety, just because it applies to Presidents. In fact, if we are willing to exercise a recall on lesser individuals who’s ability to do harm is considerably less than the Chief Executive, why shrink from the remedy where it is most needed. Article II Section 4 of the Constitution requires us to act against anyone holding office under the Government of the United States, when confronted with the specific charges laid out in its text.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article II, Section 4 – United States Constitution

If any person holding such office has been found to be a party to ‘treason’, we must bring articles of impeachment. It is not a choice of timing, politics or expediency, it is a directive. If any person holding such office has been a party to ‘bribery’, the Constitution directs us to act. If a person holding such office is guilty of ‘high crimes, or misdemeanors’, – the slightly more vague terms on which you might impeach -the Constitution requires us to start proceedings in the House and adjudicate them in the Senate under the supervision of the Chief Justice, with all branches of our co-equal government represented. I’m not for using Impeachment as a political, partisan tool, – appearing like clockwork in the hands of every minority party – no more than the filibuster or a procedure that can be side stepped or degraded. I am for using articles of impeachment to preserve and protect the constitution – as its own text provides and demands. Our Constitution has provided us with guard rails, so that we stay the course of this great and wonderful experiment. We should not be scared of exercising the rights afforded to us in the Constitution, any more than we should tolerate the current assault on the rights we enjoy in the first, fourth, fifth, eighth, ninth, tenth and fourteenth amendments. If you are an officer of the United States, from President, Senator, Representative, all the way down to a State Notary Public, you have sworn an oath to defend the Constitution.

“I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” – President’s Oath of Office

Using Article II Section 4 may be less a matter of public debate and more a matter of keeping that oath.

Impeachment is usually considered a constitutional crisis, in that one of our coequal branches of government – the ‘Executive’ – has come to grief. However, it is actually the constitution at its very best, a self-prescribed, self-healing measure that is confined to the flaws of a single individual. It is no crisis, but a powerful antidote to those who would assail the American people. Again, the text says, “shall be removed”….not “may be removed”. I understand that we are in a hopelessly partisan moment. In our current situation, I don’t know whether bringing articles of impeachment would work. I don’t know if the house and senate would discharge their duties, holding the constitution above their personal gain or political expedience. The articles of impeachment must be approved by two thirds of the Senate. I can’t remember a recent occasion when the Senate proved its worth, so in this partisan, failed environment, I have my doubts. I don’t know, in a climate of buying one’s supporters, whether a man can be reasonably asked to support a process when his ‘candy and cash prizes’ depend on not supporting it. I do think its important to point out what the Constitution demands of us.

There have been 19 impeachment trials brought in our history. Of the two presidents, Andrew Johnson and William J. Clinton, both were acquitted. Officers of the United States have been successfully convicted for a range of issues, ranging from lying under oath and perjury, to favoritism in appointments, accepting money in return for appointments, abuse of power and tax evasion.

Let us remind ourselves of the Constitution’s specific impeachable offences. First – Treason. Second -Bribery. Then High Crimes and Misdemeanors. One category is enough to impeach. It would be unique indeed to be charged with all three counts.

Is there anyone who, in the face of broad international consensus and mountains of expert evidence from US Intelligence agencies, sided and allied with a foreign state known to wish harm – and which continues to cause harm – to the United States, and which has undertaken an attack United States soil? This attack still goes unanswered and unchallenged by the Executive, evidenced in continued efforts to mollify, aid and comfort the Russian government of Vladimir Putin, the most recent of which was this month with POTUS’ personal withdrawal of a US led sanctions regime for no apparent reason. Far more serious and noteworthy, the Russian interference with our elections was a direct attack on the Constitution of the United States.

The Constitution of the United States, Art. III, defines treason against the United States to consist only in levying war against them, or in adhering to their enemies, giving them aid or comfort.

Bribery charges, for which Articles of Impeachment have been brought, tried and the individual successfully convicted, include, accepting money or any type of preferment or enrichment in exchange for federal appointments; self-enrichment and/or receiving emoluments, preferments or personal favors from anyone, foreign or domestic that you would not have received without holding the office; and using the power of the office to directly enrich or favor yourself or family members. Does this ring a bell with anyone?

The High Crimes and Misdemeanors may be met in possible counts of perjury, lying under oath, abuse of power, tax evasion, and the unfolding story of Special Counsel Robert Mueller’s Investigation.

While I’m at it, it is almost impossible to find a man of more towering integrity, professionalism and strength of character than Bob Mueller. A combat marine with a fine legal mind, combined with a sense of duty and public service. FBI directors are supposed to have a ten year term, deliberately offset from the political cycle. Mueller was confirmed unanimously by the Senate, 98-0 and reconfirmed when asked to stay an extra two years by President Obama, holding the directorship for the second longest term, after J. Edgar Hoover. Repeatedly called out of retirement to impartially and judiciously solve major matters, he was handpicked as ‘settlement master’ on the Volkswagen Emissions Litigation, The Takata Airbag Litigation, and other mediation issues presiding over billions of dollars in settlements. He has been universally praised as a tireless public servant. A recipient of the Bronze Star for Valor and A Purple Heart as a marine in Vietnam he recently received the Thayer Award for Public Service, from the US Military Academy.

Bob Mueller resigned from his private practice at WilmerHale the moment he was appointed special counsel, at, no doubt, some personal financial detriment, because it is the right thing to do and because public service comes first. POTUS -with his fully integrated business empire operating out of the West Wing- can’t seem make a public appearance without a nod to some personal gain. All attacks on Robert Mueller automatically become a scathing comment on the attacker. Some of this blog was devoted to ensuring good qualifications in our elected officials. If Robert Mueller ran for President, he would be a supremely qualified candidate. If Robert Mueller ran for President, we would be too stupid and dense to elect him.

As for the ‘witch hunt’. It is impossible to hunt for something that is apparent and in full view. Also, witches were burnt for much less evidence. So many of the new batch of “The President’s Men” -Mueller, Comey, Rosenstein, Sessions and now hundreds of career attorneys in several different jurisdictions are Republican. There is cause for optimism whilst the institutional “checks and balances” seem to working.

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